Bill Cosby’s lawyer is arguing that his sex assault conviction should be overturned due to the prosecutors unfairly using evidence to attack his character instead of addressing his conduct at issue in the charges against him.
The oral arguments heard by justices on Tuesday were made by Jennifer Bonjean, a member of Cosby’s appeals team, at a virtual hearing in Pennsylvania Supreme Court.
In front of the seven-judge panel, Bonjean asserted that her client “never had a fair shot” in his 2018 trial because trial Judge Steven T. O’Neill allowed testimony from five women who also leveled sexual abuse accusations against Cosby. “The presumption of innocence just didn’t exist for him at that point.”
In Cosby’s first trial in 2017, which ended with a hung jury, Judge O’Neill allowed only one opposition witness in addition to his accuser, Andrea Constand, to testify about sexual misconduct that witness claimed she suffered at Cosby’s hands. The appeal lawyers are arguing that O’Neill unfairly prejudiced the jury by allowing a panel of five such witnesses in the second trial, which led to his conviction.
“Consensus surely must be reached that Mr. Cosby suffered unquantifiable prejudice where the PBA evidence — or the prior bad act evidence — overwhelmed his second trial, converting it from a trial on a single offense to a trial of his character,” Bonjean told the justices.
Cosby also confessed to giving Quaaludes to women before sex in a deposition.
The now-83-year-old was eventually convicted on three counts of aggravated indecent assault following the drugging and molestation of Constand at his Philadelphia mansion in 2004.
The disgraced actor is currently serving a 10-year sentence in a Pennsylvania state prison, with a possibility of parole beginning next year.
Cosby also confessed to giving Quaaludes to women before sex in a 2005 deposition. Bonjean contends that former Montgomery County District Attorney Bruce Castor also assured Cosby that he would not “face criminal charges for the conduct,” after the deposition, Page Six reports.
“He had to testify in order to not be prosecuted,” Bonjean said.
Several members of the panel appeared to be at least somewhat swayed by Bonjean’s arguments. Justice Max Baer did appear to agree with Bonjean’s case, agreeing that the evidence was” extraordinarily prejudicial,” adding, “but there’s a trial court discretion component here.”
Pennsylvania law allows trial judges some leeway to permit prior-bad-acts testimony like the jury heard in Cosby’s second trial, but the justices are concerned that too much such evidence could overwhelm any presumption of innocence a defendant has at trial.
Even so, Montgomery County DA Kevin Steele’s legal team, including ADA Adrienne Jappe, argued that Pennsylvania Superior Court had already definitively ruled on Cosby’s arguments.
“The defendant engaged in a years-long signature predatory pattern of seeking out and intentionally isolating young women so he could intoxicate them for the ultimate purpose of sexually assaulting them,” Jappe said.
Jappe also argued that the Cosby’s no-prosecution deal after his 2005 deposition was not immutable and the DA left open the possibility the comedian could be prosecuted in the future.
The court’s decision on the appeal could take at least three months, and if Cosby’s outcome is favorable, his 2018 conviction could possibly be reversed. In any case, the comedian released a statement indicating that he was encouraged by his lawyer’s performance that he would be successful in the end.
“This morning, people around the world witnessed a beautiful presentation by Attorney Jennifer Bonjean regarding two (2) important issues — Immunity & the misuse of a law called, 404 (b) or PBAs (Prior Bad Acts Witnesses). I’m so happy because I hope and truly believe that justice will prevail.”
